8-K CINCINNATI BELL INC.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: August 1, 2011
CINCINNATI BELL INC.
(Exact name of registrant as specified in its charter)
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Ohio
(State or other jurisdiction
of incorporation)
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1-8519
(Commission File Number)
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31-1056105
(IRS Employer
Identification No.)
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221 East Fourth Street
Cincinnati, Ohio
(Address of principal
executive offices)
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45202
(Zip Code)
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Registrant's telephone number, including area code: (513) 397-9900
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Form 8-K
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Cincinnati Bell Inc.
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Section 1 - Registrant's Business and Operations
Item 1.01 Amendment of a Material Definitive Agreement.
Amended Receivables Purchase Agreement
On August 1, 2011, Cincinnati Bell Inc. (the “
Company
”), closed the sale of substantially all of the assets of its Complete Protection alarm monitoring business to Guardian Alarm of Ohio, Inc. In connection with that transaction, the Company, its wholly-owned receivables subsidiary Cincinnati Bell Funding LLC (“
CB Funding
”), the various Purchasers and Purchaser Agents identified therein and PNC Bank, National Association as Administrator and LC Bank entered into the First Amendment to Receivables Purchase Agreement dated as of August 1, 2011 (the “
First Amendment to Receivables Purchase Agreement
”). The First Amendment to Receivables Purchase Agreement amends the Company's Amended and Restated Receivables Purchase Agreement entered into on June 6, 2011 among the Company, CB Funding, the various Purchasers and Purchaser Agents identified therein and PNC Bank, National Association (the “
Receivables Purchase Agreement
”), by removing certain accounts receivable from the facility and removing the Company's wholly owned subsidiary Cincinnati Bell Complete Protection Inc. (“
CBCP
”) as an Originator. On August 1, 2011, the Company, CB Funding, and the Originators party thereto entered into the First Amendment to Purchase and Sale Agreement dated as of August 1, 2011 among CBCP, as an exiting Originator, the other Originators identified therein, CB Funding, and the Company as sole member of CB Funding and as Servicer (the “
First Amendment to Purchase and Sale Agreement
”). The First Amendment to Purchase and Sale Agreement amends the Amended and Restated Purchase and Sale Agreement entered into on June 6, 2011 among CB Funding, the Company, and the various Originators identified therein (the “
Purchase and Sale Agreement
”), by removing CBCP as an Originator to the Purchase and Sale Agreement.
A copy of the First Amendment to Receivables Purchase Agreement is attached to this Current Report as Exhibit 99.1, and a copy of the First Amendment to Purchase and Sale Agreement is attached to this Current Report as Exhibit 99.2.
Item 9.01 Financial Statements and Exhibits.
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99.1
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First Amendment to Receivables Purchase Agreement dated as of August 1, 2011, among Cincinnati Bell Funding LLC, as Seller, Cincinnati Bell Inc., as Servicer, the Various Purchasers and Purchaser Agents identified therein, and PNC Bank, National Association, as Administrator and LC Bank.
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99.2
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First Amendment to Purchase and Sale Agreement dated as of August 1, 2011 among the Originators identified therein, Cincinnati Bell Funding LLC and Cincinnati Bell Inc. as Servicer and sole member of Cincinnati Bell Funding LLC.
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Form 8-K
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Cincinnati Bell Inc.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CINCINNATI BELL INC.
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By:
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/s/ Christopher J. Wilson
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Christopher J. Wilson
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Vice President, General Counsel & Secretary
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Date: August 3, 2011
Exhibit Index
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Exhibit
No.
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Exhibit
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99.1
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First Amendment to Receivables Purchase Agreement dated as of August 1, 2011, among Cincinnati Bell Funding LLC, as Seller, Cincinnati Bell Inc., as Servicer, the Various Purchasers and Purchaser Agents identified therein, and PNC Bank, National Association, as Administrator and LC Bank.
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99.2
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First Amendment to Purchase and Sale Agreement dated as of August 1, 2011 among the Originators identified therein, Cincinnati Bell Funding LLC and Cincinnati Bell Inc. as Servicer and sole member of Cincinnati Bell Funding LLC.
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FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this “
Amendment
”), dated as of August 1, 2011, is entered into among CINCINNATI BELL FUNDING LLC (the “
Seller
”), CINCINNATI BELL INC., as Servicer (the “
Servicer
”), and as Performance Guarantor (the “
Performance Guarantor
”), the Purchasers and Purchaser Agents parties hereto and PNC BANK, NATIONAL ASSOCIATION (“
PNC
”), as administrator for each Purchaser Group (the “
Administrator
”).
RECITALS
1.
The parties hereto are parties to the Amended and Restated Receivables Purchase Agreement, dated as of June 6, 2011 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “
Agreement
”); and
2.
The parties hereto desire to amend the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.
Certain Defined Terms
. Capitalized terms that are used but not defined herein shall have the meanings set forth in the Agreement. As used herein, “
Exiting Originator
” means Cincinnati Bell
Complete Protection Inc.
, an Ohio corporation, and its successors and permitted assigns and “
PSA Amendment
” means that certain First Amendment to the Purchase and Sale Agreement, dated as of the date hereof, by and among the Exiting Originator, the existing Originators, the Seller and the Servicer and consented to by PNC, as Administrator and the Purchaser Agent.
SECTION 2.
Amendments to the Agreement
.
2.1
Exhibit I
to the Agreement is hereby amended by deleting in its entirety the defined term “CBCP”.
2.2
Exhibit I
to the Agreement is hereby amended by replacing the definition of “Legacy Originator” in its entirety with the following:
“
Legacy Originator
” means any of CBAD Virginia, eVolve, CBAD, CBET, CBT, CBW and Cyrus.
SECTION 3.
Reaffirmation of Performance Guarantor
.
The Performance Guarantor hereby (i) consents (to the extent required under the Performance Guaranty or any applicable law) to and acknowledges and agrees with the amendments contemplated by this Amendment and by the PSA Amendment and any and all other amendments, modifications or waivers to or in the Transaction Documents amended on or before the date hereof, including any and all provisions thereof that may increase the obligations of any Originator, Servicer, Sub-Servicer or Seller and (ii) ratifies and reaffirms all of its payment and performance obligations under the Performance Guaranty.
SECTION 4.
Representations and Warranties
.
Each of the Seller, the Servicer and the Performance Guarantor hereby represents and warrants to the Administrator, each Purchaser and each Purchaser Agent as follows:
(a)
Representations and Warranties
. The representations and warranties made by it in the Transaction Documents are true and correct as of the date hereof and after giving effect to this Amendment (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).
(b)
Enforceability
. The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within its organizational powers and have been duly authorized by all necessary organizational action on its part. This Amendment and the Agreement, as amended hereby, are such Person's valid and legally binding obligations, enforceable in accordance with its terms.
(c)
No Default
. Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists or shall exist.
SECTION 5.
Effect of Amendment
. All provisions of the Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Agreement shall be deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as set forth herein.
SECTION 6.
Effectiveness
. This Amendment shall become effective as of the date hereof (the “
Effective Date
”) subject to the condition precedent that the Administrator shall have received on or before the Effective Date each of the following, each in form and substance satisfactory to the Administrator:
(a)
counterparts of (i) this Amendment and (ii) the PSA Amendment (and evidence that each of the conditions to effectiveness set forth therein have been satisfied);
(b)
counterparts of an Intercreditor Agreement, dated as of the date hereof, by and among Guardian Alarm of Ohio, Inc., as buyer, the Exiting Originator, the Servicer, the Seller, and the Administrator; and
(c)
counterparts of an Assignment Agreement, dated as of the date hereof, by and among the Administrator, the Exiting Originator, Cincinnati Bell Telephone Company LLC, and the Seller.
SECTION 7.
Counterparts
. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof.
SECTION 8.
Governing Law
. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York.
SECTION 9.
Section Headings
. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.
[Signatures begin on next page]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
CINCINNATI BELL FUNDING LLC, as Seller
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
CINCINNATI BELL INC., as Servicer and as Performance Guarantor
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:
/s/ William P. Falcon
Name: William P. Falcon
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent for the Market Street Purchaser Group
By:
/s/ C. Joseph Richardson
Name: C. Joseph Richardson
Title: Senior Vice President
MARKET STREET FUNDING LLC,
as a Related Committed Purchaser
By:
/s/ Doris J. Hearn
Name: Doris J. Hearn
Title: Vice President
MARKET STREET FUNDING LLC,
as a Conduit Purchaser
By:
/s/ Doris J. Hearn
Name: Doris J. Hearn
Title: Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Purchaser Agent and as Related Committed Purchaser
By:
/s/ Eero Maki
Name: Eero Maki
Title: SVP
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of August 1, 2011 (this “
Amendment
”) is entered into by CINCINNATI BELL COMPLETE PROTECTION INC., a corporation organized under the laws of Ohio (the “
Exiting Originator
”), with its principal place of business located at 221 East Fourth Street, Cincinnati, Ohio, 45202, the remaining Originators listed on the signature pages hereto, CINCINNATI BELL FUNDING LLC, a Delaware limited liability company (the “
Company
”) and CINCINNATI BELL INC. (“
CB
”), an Ohio corporation, as sole member of the Company and as Servicer
BACKGROUND:
A.
The Exiting Originator, the Originators, the Company and CB have entered into that certain Amended and Restated Purchase and Sale Agreement, dated as of June 6, 2011 (as amended, restated, supplemented or otherwise modified through the date hereof, and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “
Purchase and Sale Agreement
” or the “
Agreement
”).
B.
The Exiting Originator desires to no longer be a party to the Agreement and to be relieved of all rights and obligations thereunder.
C.
The parties hereto desire to amend the Purchase and Sale Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.
Definitions
. Capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings assigned thereto in the Purchase and Sale Agreement or in the Receivables Purchase Agreement (as defined in the Purchase and Sale Agreement).
SECTION 2.
Amendments
. The Agreement is hereby amended as follows:
(a)
The parties hereto hereby agree that upon the effectiveness of this Amendment, the Exiting Originator shall no longer be party to the Agreement and shall no longer have any obligations or rights thereunder (other than such obligations which by their express terms survive termination of the Agreement).
(b)
Schedule I
to the Purchase and Sale Agreement is hereby amended and restated in its entirety as
Schedule I
attached hereto.
(c)
Schedule II
to the Purchase and Sale Agreement is hereby amended and restated in its entirety as
Schedule II
attached hereto.
(d)
Schedule III
to the Purchase and Sale Agreement is hereby amended and restated in its entirety as
Schedule III
attached hereto.
(e)
Schedule IV
to the Purchase and Sale Agreement is hereby amended and restated in its entirety as
Schedule IV
attached hereto.
SECTION 3.
Representations and Warranties
. Each of the Exiting Originator, the Originators, the Company and CB hereby represents and warrants as follows:
(a)
Representations and Warranties
. The representation and warranties made by it in the Purchase and Sale Agreement, as amended by this Amendment, and in the other Transaction Documents are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties are true and correct as of such earlier date).
(b)
Enforceability
. The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Purchase and Sale Agreement, as amended hereby, are within each of its organizational powers and have been duly authorized by all necessary organizational action on its part. This Amendment and the Purchase and Sale Agreement, as amended hereby, are such Person's valid and legally binding obligations, enforceable in accordance with the terms thereof.
(c)
No Default
. Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby, no Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event exists or shall exists.
SECTION 4.
Effect of Amendment.
All provisions of the Purchase and Sale Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Purchase and Sale Agreement shall be deemed to be references to the Purchase and Sale Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Purchase and Sale Agreement other than as set forth herein. Upon the effectiveness of this Amendment and at all times thereafter, references to the Exiting Originator (in such capacity or in any other capacity, including, without limitation, its individual capacity) in the Agreement or any other Transaction Document or in any other agreement or document related to any of the foregoing shall be deemed to be read to take into effect the transactions contemplated by this Amendment.
SECTION 5.
Effectiveness
. This Amendment shall become effective as of the date hereof (the “
Effective Date
”) subject to the condition precedent that the Administrator shall have received on or before the Effective Date each of the following, each in form and substance satisfactory to the Administrator: (a) evidence that each of the conditions to effectiveness set forth in that certain First Amendment to the Receivables Purchase Agreement, dated as of even date herewith, shall have been satisfied and (b) counterparts of this Amendment duly executed by each of the other parties hereto.
SECTION 6.
Miscellaneous
. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
CINCINNATI BELL COMPLETE PROTECTION INC.
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
CINCINNATI BELL FUNDING LLC
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
CINCINNATI BELL INC., as sole member of Cincinnati Bell Funding LLC
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
CINCINNATI BELL INC., as Servicer
By:
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
ORIGINATORS:
CINCINNATI BELL ANY DISTANCE INC
CINCINNATI BELL TELEPHONE COMPANY LLC,
CINCINNATI BELL WIRELESS, LLC CINCINNATI BELL EXTENDED TERRITORIES LLC
CYRUS NETWORKS, LLC
CINCINNATI BELL TECHNOLOGY SOLUTIONS INC.
EVOLVE BUSINESS SOLUTIONS LLC
CINCINNATI BELL ANY DISTANCE OF VIRGINIA LLC
By:_
/s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Vice President and Treasurer
Consented to:
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:
/s/ William Falcon
Name: William Falcon
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent
By:
/s/ C. Joseph Richardson
Name: C. Joseph Richardson
Title: Senior Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Purchaser Agent
By:
/s/ Eero Maki
Name: Eero Maki
Title: SVP